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Reg 29 and IS entitlement
I have a client due to attend an ESA tribunal and we expect to be putting forward an argument that his health would be at risk of deterioration if he was found to be fit to work. However client is also entitled to claim IS as a carer and so if he was found to be fit to work he wouldn’t have to sign on etc.
Should the tribunal take into account this alternative benefit entitlement that would enable client to stay off JSA?
My point of view is that they should - the regulation is talking about risk that arises from finding that the client does not have LCW rather than risk arising from jobseeking/working.
Would be interested to hear what others think
If I have understood your question correctly, what other benefits the appellant is entitled to following an appeal decision is irrelavant. The panel will assess for ESA and ESA only. If appellant loses, there is nothing stopping them making a claim for IS as a carer (as long as they qualify as a carer). But the Tribunal will not consider this nor will they suggest this.
If I have understood your question correctly, what other benefits the appellant is entitled to following an appeal decision is irrelavant. The panel will assess for ESA and ESA only. If appellant loses, there is nothing stopping them making a claim for IS as a carer (as long as they qualify as a carer). But the Tribunal will not consider this nor will they suggest this.
I’m not sure that was the question. The question, it appears to me, is if someone were found not to have LCW who would have no need to claim JSA, should the conditions of JSA nevertheless still be considered for the purposes of whether there would be a substantial risk to the appellant?
If I have understood your question correctly, what other benefits the appellant is entitled to following an appeal decision is irrelavant. The panel will assess for ESA and ESA only. If appellant loses, there is nothing stopping them making a claim for IS as a carer (as long as they qualify as a carer). But the Tribunal will not consider this nor will they suggest this.
I’m not sure that was the question. The question, it appears to me, is if someone were found not to have LCW who would have no need to claim JSA, should the conditions of JSA nevertheless still be considered for the purposes of whether there would be a substantial risk to the appellant?
MrFinch that is what I was trying to ask, expressed much clearer :s
Another example could potentially be an appeal concerning CBESA where the claimant’s financial circumstances are such that they could cope with not claiming JSA.
You could look at IJ v SSWP (IB) [2010] UKUT 408 (AAC) which was to do with the similar test (reg 27(b)) for the PCA. It has been supported in CSE/360/2011 recently (which is an ESA reg 29 case). In IJ Judge Mark says at para 10:
“Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake. The test is as to the risk as a result of being found capable of work. If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance. That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.”
In your case, the very possible need to seek work might not exist (as s/he can claim IS as a carer instead).
But still, lots of the other recent Reg 29 cases (including CSE/360/2011) keep citing Charlton’s test of assessing the range and type of work a claimant may be reasonably expected to undertake if found not to have limited capability for work.
EDIT - thank you Ros for adding the links, below. Couldnt figure out how to do it myself
[ Edited: 5 Sep 2013 at 05:43 pm by Worker#6 ]here’s a link to CIB/1219/2010 (IJ v SSWP (IB) [2010] UKUT 408 (AAC)) -
http://www.osscsc.gov.uk/Aspx/view.aspx?id=3120
and CSE/360/2011 -
..Should the tribunal take into account this alternative benefit entitlement that would enable client to stay off JSA?
My point of view is that they should…
I think you’re probably right. But I’m not sure what point you’re making beyond that.
The Court in Charlton accepted at para 34 that the risk to health should be assessed in any of the following situations:
(i) where the very finding of capability might create the substantial risk - the Court gives the example of someone with anxiety whose condition significantly deteriorates on being told they don’t qualify for IB.
(ii) the journey to and from work
(iii) the workplace itself
IJ v SSWP adds another situation as follows:
(iv) how your health would be affected by the jobseeking process that you may have to undergo should you not qualify for IB.
Clearly, the above test is disjunctive in that you can satisfy Reg 29 if you can show a substantial risk in any of the above contexts, rather than having to show there’d be a substantial risk to your health in each one. Consequently, even if (iv) doesn’t apply to you because you’re a millionaire or have an alternative benefits (CA/IS), you can still qualify for ESA via Reg 29 if the risk exists in either (i), (ii) or (iii).
On the facts of the present case, the option of IS/CA probably rules out there being a risk as a result of (iv) and (i) but I think (ii) and (iii) are objective tests in the sense that they look at what would happen on the journey to work or in the type of workplace he could reasonably be expected to work in irrespective of the fact that he wouldn’t have to make the journey or contemplate the workplaces concerned if he had an alternative income.
[ Edited: 6 Sep 2013 at 01:19 pm by Tom H ]..But I’m not sure what point you’re making beyond that.
Sorry Sam the above comment was a little impolite of me. It’s obvious what point you’re making. And it’s a very interesting one at that. That Reg 29 is a subjective test based on the individual circumstances of the claimant.
I still think that, at very least, points (ii) and (iii) in my last post are objective tests, if only because the substantial risk has to arise “by reasons of such disease or [bodily or mental] disablement” rather than by reason of the poverty the claimant would face should he/she not qualify for ESA. In other words, the risk arises from health not wealth (or rather the lack of it).
However, I can see that it could then be argued that wealth (or at least an alternative income to ESA) could indirectly affect a person’s health (eg, they’d have the same, possibly a little bit more, money on IS/CA as ESA so how could not having LCW lead to the substantial risk). In other words, wealth = health. That’s difficult to argue against. However, I think lawyers would call factors like wealth that indirectly affect health “too remote” to be relevant to Reg 29. Eg, the person he cares for could lose their MRC of DLA. Or he could win the lottery making Reg 29 a bit irrelevant.
In fact, it’s more realistically a remoteness issue when I think of it rather than trying to categorise Reg 29 as an objective test. Reg 29 is clearly subjective in the sense it has to consider the range of work, functional impairments etc of the individual claimant.
Additionally, where Income Support is the alternative income envisaged, taking that into account to decide whether a person qualifies for ESA (under Reg29) would effectively re-write section 1(3)(e) WRA 2007, which makes it a basic condition of ESA that a person is not entitled to IS, to add “and would not be entitled to IS should he/she fail the LCW assessment and fall then to be considered under Reg 29”.
[ Edited: 9 Sep 2013 at 09:07 am by Tom H ]